IN THE CRIMINAL COURT FOR _______________ COUNTY, TENNESSEE
AT _____________________

STATE OF TENNESSEE			

VS.								NO.   

MOTION FOR ATTORNEY-CONDUCTED INDIVIDUAL
VOIR DIRE OF POTENTIAL JURORS ON ISSUES OF
RACE, THE DEATH PENALTY, AND PUBLICITY

	Comes the defendant, by counsel, and respectfully moves for the Court to permit defense counsel to conduct questioning of potential jurors, individually and out of the presence of other prospective jurors, on issues related to race and interracial relationships, in this capital prosecution of a black man charged with killing a white woman.  This motion is made pursuant to Amendments 5, 6, 8, and 14 of the U.S. Constitution; Article I, §§ 8, 9, 16, and 17, and Article XI, § 8 of the Tennessee Constitution; and Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 1687-1688, 90 L.Ed.2d 27 (1986), in which the Supreme Court reversed a capital conviction because the trial court failed to allow counsel to voir dire potential jurors on the issue of racial bias.  The grounds for this motion are as follows:
	1.	Defendant is a black man accused of killing a white woman.  This case is highly charged with race-sensitive issues.  It is the classic example of interracial crime and carries with it all the risks of racial prejudice attendant to interracial crime.  The fact that the state has alleged a sexual motivation behind the killing heightens the potential for racial bias.   It is crucial that defendant's counsel be able to question jurors about issues of race and interracial relationships in order to avoid "extreme prejudice" which will go undetected otherwise. 
	2.	A fair and impartial jury must be selected to decide the issues in a trial where the defendant's very life is at stake.  A court must be scrupulous in guaranteeing this impartiality and fairness in capital cases.  See, e.g.,  Morgan v. Illinois, 504 U.S. 719, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992);Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 1687-1688, 90 L.Ed.2d 27 (1986).  In this case, individual voir dire regarding racial issues is required to protect the defendant’s constitutional rights set out above.  See Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 1687-1688, 90 L.Ed.2d 27 (1986). 
	 3.	In Turner v. Murray, 476 U.S. 28 (1986), the Supreme Court declared that a black defendant in a white-victim case has a constitutional right to question jury veniremembers on their racial prejudices.  The Supreme Court explained:
Because of the range of discretion entrusted to a jury in a capital sentencing hearing, there is a unique opportunity for racial prejudice to operate but remain undetected.  On the facts of this case, a juror who believes that blacks are violence-prone or morally inferior might well be influenced by that belief in deciding whether petitioner's crime involved the aggravating factors specified under Virginia law.  Such a juror might also be less favorably inclined toward petitioner's evidence of mental disturbance as a mitigating circumstance.  More subtle, less consciously held racial attitudes could also influence a juror's decision in this case.  Fear of blacks, which could easily be stirred up by the violent facts of petitioner's crime, might incline a juror to favor the death penalty.  Id. at 35.

The Turner Court reasoned that the petitioner had shown a constitutional violation because the trial judge's refusal to permit voir dire on racial attitudes created an unacceptable risk that "racial prejudice may have infected petitioner's capital sentencing."  Id. at 36.  The Supreme Court concluded:  "We hold that a capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias."  Id. at 36-37. 
	4.	Tennessee courts have recognized the pernicious presence of racial bias in this state.  “It is indisputable, and common knowledge in our multi-colored community, that racial prejudice is a malady still with us. We think, therefore, that it was altogether possible, and more likely probable, that some jurors, as they stood unsworn, harbored beliefs or attitudes which interfered with their ability to be impartial. Furthermore, the particular facts of this case created the very real danger that old prejudices could have been recalled or new ones created, or both. In spite of this perilous state of affairs, not a single question was asked by defendant's counsel concerning a prospective juror's potential for fairness and impartiality notwithstanding the racial overtones and the disturbing facts.”   Butler v. State, 1988 WL 63526, at p. 3 (Tenn. Crim. App. 1988).
	5.	 The taint of, or at least the appearance of racial bias, effects all aspects of the Tennessee judicial system.  See Parker v. Parker, 986 S.W.2d 557 (Tenn. 1999) (the Supreme Court considers whether the trial court erred in allowing a witness to testify about the alleged harmful effects of an interracial relationship on a minor child and finds the testimony clearly prohibited under U.S. Supreme Court caselaw) and State v. Williams, 827 S.W.2d 804 (Tenn. Crim. App. 1991) (wherein police officers made racist comments).  The Court of Criminal Appeals in Williams described the situation in the trial court and their view of the comments:
When directing the entry of a mistrial in this case, the trial court made certain contemporaneous statements as a means of explanation. A portion of these remarks are as follows:   

Before you bring the jury out, let me make another statement. Now, I know 	that blacks make references to whites, and whites make references to blacks, but the fact that blacks call whites "honkies," and that whites call blacks "niggers,". . .doesn't necessarily mean that they would do things like [defense counsel has] indicated. . . . Some people will make references and call people names, but will not change evidence. . . . I guess everybody is racially prejudiced to some degree in some way, but I don't think that the fact that any of these officers referred to this defendant as a "nigger" would necessarily mean that they would manufacture evidence, or be prejudiced, or go after him, or go out to get him just because he's black.  

We agree with the trial court that simply because a person displays racial prejudice, however distasteful, it does not necessarily follow that that person will manufacture evidence or lie on the witness stand. We disagree with the court, however, with its insistence on granting a mistrial when the jury is informed that a witness may have displayed such prejudice against a certain race in general or this defendant in particular. The jury should have been entitled to determine if any of the state's witnesses exhibited racial prejudice and if so, whether such hostility affected any of the witnesses' testimony.  Id. at 809.   

Obviously racial prejudice does exist in full force today, even when most people are aware of modern society’s purported rejections of those beliefs.  Effective methods must be undertaken to insure that such bias does not affect criminal proceedings.
	6.	Any potential juror who bears the slightest racial prejudice will inevitably experience difficulty being fair and impartial in this case.  Such a juror would have a hard time setting aside his prejudice and giving the defendant the benefit of any doubt.  In fact, such a juror might even experience increased racial prejudice because of the facts of this case.  Most potential jurors realize that expressing certain attitudes regarding racial issues is not "politically correct" and will be reluctant to be forthright in front of peers.  For this same reason, racist behavior has historically been more prevalent when its perpetrators are masked or anonymous.  
	7.	Questioning should take place individually to promote candor on the sensitive subject of racial attitudes.  Potential jurors must be questioned in an atmosphere where they feel comfortable expressing their honest thoughts and beliefs and not parroting what they think the Court wants to hear.  As former prosecutor Thomas Osborne has noted:
[Jurors] are afraid of revealing their feelings in public.  They are afraid of appearing stupid.  They are afraid of being rejected.  Psychologists say that jurors suffer from "situational anxiety."

There are several consequences of this fear ... jurors are not going to openly and freely share their innermost personal feelings about the issues.  In a National Jury Project survey, 71 percent of the jurors surveyed admitted feeling prejudice against the defense in a criminal case before the trial started, but only 15 percent of the jurors admitted any prejudice during voir dire.  Andrews, Mind Control in the Courtroom, Psychology Today, March 1982, p. 70.  Osborne, T., Trial Handbook for Kentucky Lawyers, Second Edition, p. 266 (1992).   

	8.	Questioning should be conducted primarily by the attorneys, rather than the Court, since jurors are more likely to be candid in their responses to lawyers than to judges. See, e.g., Jones, S., “Judge- Versus Attorney- Conducted Voir Dire: An Empirical Investigation of Juror Candor,” 11 Law and Human Behavior 131 (1987) (jurors perceive judges, as opposed to attorneys, as important authority figures and attempts to please the judge often lead jurors to be less than honest in their replies).  Further, counsel are more familiar with the specific facts of the case and thus can focus on the information necessary to explore the need to exercise challenges for cause and peremptory challenges.
	9.	The importance of attorney-conducted voir dire was recognized by the Court of Appeals for the Fifth Circuit in United States v. Ledee, 549 F.2d 990, 993 (5th Cir. 1977) (footnote and citation omitted), cert den. 434 U.S. 902, 54 L.Ed.2d 188, 98 S.Ct. 297 (1977):
[W]e must acknowledge that voir dire examination in both civil and criminal cases has little meaning if it is not conducted by counsel for the parties.  "A judge cannot have the same grasp of the facts, the complexities and nuances as the trial attorneys entrusted with the preparation of the case.  The court does not know the strength and weaknesses of each litigant's case.  Justice requires that each lawyer be given an opportunity to ferret out possible bias and prejudice of which the juror himself may be unaware until certain facts are revealed."    
	The Ledee court also noted the American Bar Association Commission on Standards of Judicial Administration's suggested procedure in ABA Standards, Trial Courts, Sec. 2.12 (1976), of having the judge conduct some voir dire while allowing counsel opportunity for direct questioning.
In situations where the jurors may have previous information about the case, experience and research clearly indicate the importance of voir dire by counsel as a means of restoring an impartial attitude.  The same opportunity should be afforded where the jurors are likely to have strong predisposition arising out of the nature of the case itself.  Id.

	This is a case in which jurors will have a strong predisposition to conviction and toward a death sentence because [facts of case] It is extremely important that counsel be able to adequately question jurors to overcome their predisposition against the defendant.  	10.	Without the ability to question jurors, counsel will be unable to make cause challenges or adequately exercise peremptory strikes because "it is the adversary seeking exclusion who must demonstrate through questioning, that the potential juror lacks impartiality."  Morgan v. Illinois, 119 L.Ed.2d at 505 (citations omitted; emphasis in original).
It is axiomatic that the constitutional guarantees of a fair trial by an impartial jury and equal protection of the law require that jurors not come into the trial proceedings with opinions about the defendant and his guilt that have been improperly shaped by racial prejudice.  First, it is unacceptable for racial prejudice to infect any capital trial.  Turner, supra.  Second, a capital jury must render a verdict based solely on the evidence presented in court.  Irvin v. Dowd, 366 U.S. 717, 723 (1961);  Spies v. Illinois, 123 U.S. 131 (1887); Holt v. United States, 218 U.S. 245 (1910); Reynolds v. United States, 98 U.S. 145 (1878).  
	11.	The United States Constitution and the Tennessee Constitution assure to every person accused of a criminal offense a presumption of innocence.  The Supreme Court has acknowledged that the most priceless safeguard of individual liberty and dignity is the Sixth Amendment right to trial by an impartial jury. 
In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, "indifferent" jurors.  The failure to accord an accused a fair hearing violates even the minimal standards of due process. . . . In the language of Lord Coke, a juror must be "indifferent as he stands unsworne." Co Litt 155b. . . . This is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies.  It was so written into our law as early as 1807 by Chief Justice Marshall in 1 Burr's Trial 416 (1807).  "The theory of the law is that a juror who has formed an opinion cannot be impartial."  Reynolds v. United States, 98 U.S. 145, 155 [(1878)].  Irvin v. Dowd, 366 U.S. at 722 (footnotes omitted).
 
	12.	Impartiality of the jury is so crucial because that body is invested with the awesome responsibility of deciding the fate of an accused person and resolving sometimes difficult questions of culpability and criminal responsibility.  The input and reasoned involvement of each juror is essential to the proper functioning of the criminal justice system.  The Supreme Court has recognized that
[a] trial ... is, at bottom, nothing more than the sum total of a countless number of small discretionary decisions made by each individual who sits in the jury box. The difference between conviction and acquittal turns on whether key testimony is believed or rejected; on whether an alibi sounds plausible or dubious; on whether a character witness appears trustworthy or unsavory; and on whether the jury concludes that the defendant had a motive, the inclination, or the means available to commit the crime charged. A ... biased juror sits with blurred vision and impaired sensibilities and is incapable of fairly making the myriad decisions that each juror is called upon to make in the course of a trial. To put it simply, he cannot judge because he has prejudged.  Turner v. Murray, 476 U.S. 28, 42-43 (1986) (Brennan, J., concurring in part and dissenting in part).

	13.	The "right to an impartial jury carries with it the concomitant right to take reasonable steps designed to insure that the jury is impartial."  Ham v. South Carolina, 409 U.S. 524, 532 (1973) (Marshall, J., concurring in part and dissenting in part) (a case involving racial issues).  The oldest, most common, and most important of the steps that may be taken to insure jury impartiality are the challenge for cause and the peremptory challenge.  Id. at 532; see also Johnson v. Louisiana, 406 U.S. 356, 379 (1972); Swain v. Alabama, 380 U.S. 202, 209-222 (1965).  The rights to challenge for cause and peremptory challenge are meaningless, however, if they are unaccompanied by the right to a full and adequate voir dire.  Ham v. South Carolina, 409 U.S. at 532; Swain v. Alabama, 380 U.S. at 221; Turner v. Murray, 476 U.S. 28, 40 (1986).  The United States Supreme Court has long recognized that 

[v]oir dire plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored.  Without an adequate voir dire the trial judge's responsibility to remove prospective jurors who will not be able impartially to follow the court's instructions and evaluate the evidence cannot be fulfilled.  Similarly, lack of adequate voir dire impairs the defendant's right to exercise peremptory challenges.  Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981) (citations omitted).

	14.	Thorough voir dire is not an anomaly in death cases nor in less extraordinary prosecutions.  "The voir dire in American trials tends to be extensive and probing, operating as a predicate for the exercise of peremptories, and the process of selecting a jury protracted."  Swain v. Alabama, 380 U. S. 202, 218-219 (1965).  "The persistence of peremptories and their extensive use demonstrates the long and widely held belief that peremptory challenge is a necessary part of trial by jury."  Swain at 219, quoted approvingly in Batson v. Kentucky, 476 U.S. 79, 91, n.15 (1986).
	15.	Counsel must have the opportunity to probe potential jurors regarding their beliefs because a blanket statement swearing to uphold the law is insufficient to guarantee a fair jury.  
It may be that a juror could, in good conscience, swear to uphold the law and yet be unaware that maintaining such dogmatic beliefs about the death penalty [or race] would prevent him or her from doing so.  Morgan v. Illinois, 504 U.S.  719, 735-6, 112 S.Ct. 2222, 2233, 119 L.Ed.2d 492 (1992).

See, also, Randolph v. Commonwealth, Ky., 716 S.W.2d 253 (1986) ("Even where jurors disclaim any bias and state they can give the defendant a fair trial, conditions may be such that their connection would probably subconsciously affect their decision in the case.  It is always vital to the defendant in a criminal prosecution that doubt of unfairness be resolved in his favor.”); Coleman v. Kemp, 778 F.2d 1487, 1542 (11th Cir. 1985), cert denied 476 U.S. 1164 (1986) (“Leading questions and conclusory answers” were inadequate so insure a fair voir dire and thus fair trial).  
	16.	These cases demonstrate why merely questioning whether the jurors have any bias or prejudice in relation to the race of the defendant or victim is entirely inadequate to protect his rights.  The type of questions which counsel proposes to ask in order to probe for bias are more specific and personal, and thus more appropriate for individual questioning.  Defendant believes that in order to adequately question jurors the following proposed questions, for example, will be appropriate: “Do you live in a racially mixed neighborhood? Have you ever had a negative experience with a person of another race?  Are any members of your family dating or married to persons of another race?  Have you ever been romantically involved with a member of another race?  Do you belong to any church or other organization with specific policies or views regarding race relations or interracial marriage?”  These types of questions, with appropriate followup, will be necessary in order to receive specific information indicative of jurors’ views which may lead to cause or peremptory challenges.  “Are you prejudiced?”  does not accomplish this goal and thus does not protect the critical constitutional rights at stake.              
		WHEREFORE, defendant respectfully moves for the Court to grant  
counsel the opportunity to question potential jurors on issues of race and interracial relationships, individually and out of the presence of other jurors in order to preserve his rights to a fair trial, due process, freedom from cruel and unusual punishment, and equal protection by allowing counsel to develop information needed to intelligently exercise cause challenges and peremptory strikes.  Counsel request an evidentiary hearing on this matter.

							Respectfully submitted,

							_________________________________